Attorneys for challengers to the constitutionality of the 1965 voting rights law’s key provision for federal regulation of state and local election laws urged the Supreme Court on Friday to settle the issue in the next Term, starting October 1. One new case arrived from the town of Kinston in North Carolina and a second came from Shelby County in Alabama. The D.C. Circuit Court has upheld the provision at issue — Section 5 — although the Supreme Court itself three years ago raised significant questions about its validity. The Kinston case reached the Court this morning. The petition is here, and the appendix (a large file) is here. The Shelby County case was filed in early afternoon; the petition ishere, and the D.C. Circuit Court ruling in that case is here. Not only has the time come to examine the constitutional questions the Court has raised, the Kinston petition argued, but the Justice Department’s “overzealous manner” of enforcement of Section 5 has put heavy new burdens on state and local governments covered by that provision. The Shelby County petition argued that the renewed law puts states into “federal receivership,” raising “fundamental questions of state sovereignty,” while denying equality only to designated states – predominantly in the South. Shelby County also assailed the Justice Department’s “needlessly aggressive exercise” of its veto powers over state and local election laws.
Although the Kinston case was found to be moot by the D.C. Circuit, the petition challenged that conclusion and argued that the Justices should grant review of both that case and the one from Shelby County, contending that the North Carolina case is a significantly broader challenge. When Congress in 2006 renewed Section 5 for an additional 25 years, it imposed added requirements on state and local governments covered by that section. The challengers in the Kinston litigation argued that those new burdens prove even more convincingly that Section 5 is now unconstitutionally broad as it applies to the state and local governments that remain the only ones targeted by Section 5. The Section applies throughout nine states, and to various county or city governments in seven other states.
That provision requires state and local governments that had a prior record of racial bias in voting to submit any change in their election laws, in advance of implementing such a change, either to the Justice Department or to a special three-judge District Court in Washington. Only if a change was given “pre-clearance” in Washington could it be put into effect. When the Supreme Court was last faced with a constituitonal challenge to Section 5, three years ago, it bypassed the constitutional question by expanding the option of covered governments to “bail out.” In doing so, however, the Court raised a variety of questions that suggested that the coverage formula may be seriously out of date, and thus may no longer be justified for just those covered governments.
Full Article: Section 5 challenges reach Court (UPDATED) : SCOTUSblog.